CHRONICLEThe Newsletter of the Tennessee Supreme Court Historical So c i e ty • Fa ll 2004

Alvin Hawkins and the State Debt Controversyby Gil Campbell

The third in a series of profiles of Tennessee SupremeCourt justices who also served as governor of the state.

The twenty-fifth governor of Tennessee was, infact, a native Kentuckian. Alvin Hawkins wasborn on December 2, 1821, in Bath County.

When Hawkins was five, his father moved the familyto Maury County, Tennessee. In 1828, his family decid-ed to permanently settle in Carroll County. His fathermade certain that young Alvin received both a formaland a practical education. Hawkins worked longhours on the family farm and, by his twelfth birthday,had become a proficient blacksmith. He ultimatelytaught school before deciding on a career in law.

In 1842, Hawkins apprenticed himself to B.H.Totten, one of Carroll County’s more prominent attor-neys. He read law under Totten and, in 1843, wasadmitted to the bar. He established a law office inCamden, Benton County, where he soon developed anexcellent reputation and turned it into a financiallyrewarding practice. In 1845, he ran unsuccessfully fora seat in the Tennessee House of Representatives and,in 1847, married Julia Ott of Murfreesboro. His inter-est in politics heightened and he became active in theWhig party. In 1853, he won election to the seat whichhe had tried to win six years earlier.

Hawkins was a staunch Unionist and, in 1860,supported the Constitutional Union Party’s ticket offellow Tennessean, John Bell, for president andEdward Everett for vice president. Following Bell’sdefeat, Hawkins switched his allegiance to theRepublican Party and was elected to Congress in 1862.Apparently, however, there were “irregularities” inthe election, which prevented him from taking hisseat. With the Civil War raging, and following theoccupation of West Tennessee by Union forc e s ,Military Governor Andrew Johnson asked Hawkins totravel the region and report on “men and matters” to

aid in the eventualre c o n s t ru c t i o np rocess. In 1864,Hawkins’ pro m i-nence in the Re-publican Partycaused Pre s i d e n tAbraham Lincolnto appoint himUnited States Dis-trict Attorney forWest Tennessee. He resigned this position in September 1865,h o w e v e r, to accept an appointment from Governor Wi l l i a mB rownlow to the Tennessee Supreme court.

During Reconstruction, Hawkins served on aCourt which considered itself independent from the‘Radical Republican’ administration of Bro w n l o w,even though Hawkins' appointment had come fromthe fiery governor.

The war and the new political order it created hadrevolutionized the Court. Hawkins served with dis-tinction as a member of the judiciary until his appoint-ment as Consul-General to Cuba in 1868. Because of ayellow fever scare, however, he resigned his commis-sion after six months. Upon his return in 1869,Hawkins was reelected to the Supreme Court.

The jurisprudence of the justices reflected theirpolitics. They had little judicial experience prior to thewar. They were not recognized as leaders in the organ-ized bar. The majority had Whig political experiencebut none were considered to be outstanding politi-cians. They did, however, have a common disdain forall who had elected to support the Confederacy. Butthe Court would only sit for its December term andpart of the March term before a new bench would beelected in May 1869. On April 20, Alvin Hawkins wonnomination by only one vote. The Radical Party was

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Alvin Hawkins1821-1905

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Andy BennettNashville

Barri BernsteinNashville

Larry BoydRogersville

Hon. Ben CantrellNashville

Michael W. CatalanoNashville

Hon. Cornelia A. ClarkNashville

Hon. Frank W. Drowota, IIINashville

Beth DuPreeDyersburg

E. Bruce Foster, Jr.Knoxville

James M. Glasgow, Jr.Union City

William L. HarbisonNashville

J. Fraser Humphreys, Jr.Memphis

Alfred H. KnightNashville

Linda W. KnightNashville

Marcia M. McMurrayCleveland

J. Payson MatthewsSomerville

Jimmie C. MillerKingsport

Marlene E. MosesNashville

Jack W. Robinson, Sr.Nashville

Donna SimpsonCookeville

Ruth Anne ThompsonNashville

Marianna WilliamsDyersburg

SENIOR DIRECTORS

T. Maxfield BahnerChattanooga

Ward DeWitt, Jr.Nashville

Charles H. WarfieldNashville

TSCHS Board of Directors

President-ElectRoss B. Clark, II

Memphis

TreasurerJerry Adams, CPA

Chattanooga

SecretaryAndree Blumstein

Nashville

Immediate Past-PresidentClaudia S. Jack

Columbia

OFFICERS

PresidentJohn B. Rayson

Knoxville

DIRECTORS

The Chronicle is published quarterly by the Tennessee Supreme Court Historical Society,Gilbert R. Campbell Jr., executive director and editor,4529 Beacon Dr., Nashville TN 37215 • 615-665-9187.

Alvin Hawkins, continued from page 1beginning to be rent asunder and the GeneralAssembly would soon become a conservativebody. The approval of a new state constitutionended Reconstruction government in 1870 andalso ended Hawkins term as a justice.

In its first session, the new conservative legis-lature passed an act limiting the right to carryarms. Under the act, it was a crime for “any per-son to publicly or privately carry a dirk, swordcane, Spanish stiletto, belt or pocket pistol orrevolver.” Needless to say, the act immediatelycame under attack.

Suddenly Alvin Hawkins emerged as counselfor two defendants who had been charged withviolating the statute. In Andrews vs. State in 1871,Hawkins argued that the statute was violative ofthe Second Amendment of the United StatesConstitution and, also, that the Tennessee legisla-ture only had the power to regulate and not toprohibit the right to bear arms. The SupremeCourt quickly dismissed the Second Amendmentargument and interpreted the right to bear armsin Tennessee as extending only to weapons thatwould be normally carried by a soldier. TheCourt also said that the defendant could notavoid prosecution under the statue by maintain-ing that his weapon was carried for reasons ofself-defense. The Court, in ratifying the legisla-ture’s intent, was attempting to quell the violencethat had been prevalent in Tennessee since seces-sion. Had Hawkins argued before a RadicalRepublican Court (like the one he had left in1870), he probably would have prevailed.

In 1880, Hawkins' political star was on therise. While attending a general conference of theME church in Cincinnati, Hawkins was nominat-ed by the Republican Party of Tennessee as itscandidate for governor. He won election as thefirst Republican governor since Reconstruction.

There was a major division in the DemocraticParty over what to do about the state debt, whichhad been the subject of controversy since 1877.The debt was first incurred in support of anti-bel-lum railroad construction and it increased dra-matically during the Civil War. Unpaid interestwas allowed to accumulate and by 1870, forexample, the debt amounted to 43 million dollars.There was growing sentiment in Tennessee torepudiate the debt, either partially or wholly.

Upon his election as governor, Hawkins pro-posed a compromise and on April 6, 1881, the leg-

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Legislative acts of 1925 and 1927 authorized thestate to acquire land in Eastern Tennessee. Thisland was to be turned over to the United States

in order to establish the Great Smoky MountainsNational Park.

In one case, the state sued to condemn about 300acres in Cades Cove. The trial court said that Ten-nessee could not exercise the power to eminentdomain when the purpose was to turn the land overto the United Sates. It relied on case law from otherstates that held the sovereign can only exercise thepower of eminent domain for its own public uses andnot for the public uses of another sovereignty.

On appeal the Tennessee Supreme Court, perChief Justice Grafton Green, initially determined thatTennessee precedence required a contrary decision.Land must be condemned for a public use of the gov-ernment instrumentality seeking to exercise thepower, the Court said, but the Court could “perceiveno reason why a public use ... may not be common toTennessee and to the United States.”1 A park is a pub-lic use. The fact that it also serves a public use ofanother sovereign does not negate the validity of theexercise of the power of eminent domain. The Courtobserved that Tennesseans will be the chief beneficiar-ies of the park due to proximity of the park.Tennesseans “will have superior advantages”2 i nenjoying the park.

The Supreme Court rejected other arguments thatthe acts authorizing the condemnation of this landwere unconstitutional. The acts did not violate thesingle subject rule, nor did the ceding of the land adja-cent to the state border violate the constitutional pro-vision defining the boundaries of the state. The consti-tutional provisions concerning the size of countiesand the taxation uniformity clause also were not vio-lated by the cession of land to the United States.

The Great Smoky Mountains National Park wasformally established by Congress June 15, 1934, andon September 2, 1940, President Franklin DelanoRoosevelt officially dedicated the park. The park isone of the largest protected areas in the EasternUnited States. It is recognized for the diversity of itsplant and animal life, the beauty of its ancient moun-tains and the Appalachian mountain culture. The parkattracts over nine-million visitors each year and has anenormous economic impact on east Tennessee — a l ldue to a wise decision of the Tennessee Supreme Court.

Notes1State ex rel v. Oliver, 162 Tenn. 100, 109, 35 S.W.2d 396(1931).2Id., 162 Tenn. at 100.

Andy Bennett is Chief Deputy Attorney General of Ten-nessee and a member of the Society’s Board of Directors.❖

Creating the Great Smoky Mountains National Parkby Andy D. Bennett

Alvin Hawkins, continued islature passed the “100-3 Act” which funded the debt at 100 cents on the dollar, including unpaid interest andcalled for the issuance of three-percent “compromise bonds.” It also increased the property tax from ten centsto forty cents to pay the interest. This compromise did not hold, however, and in February 1882, the TennesseeSupreme Court declared the act to be unconstitutional and void. Hawkins called the legislature into special ses-sion and on May 20, 1882, the General Assembly passed the “60-6 Settlement” which funded the principal andall past due interest on the state bonds at 60 cents on the dollar.

In 1882, Hawkins was opposed in his reelection bid by General William “Low Tax” Bate who received thesupport of most of the State Credit Democrats. His failure to achieve a settlement on the state debt controversywould cost Hawkins. Bate was elected and succeeded in securing the passing of the “Compromise of 1883”which called for the funding of the “state debt proper” ($2,118,000) with accumulated interest into 5 1/4 percentbonds; the funding of the remainder of the debt with accumulated interest, at 50 cents on the dollar into threepercent bonds, resulting in the decrease of the state debt from $29 million to $16 million dollars. The paymentof the debt was no longer the subject of political discussions, although it remained an acrimonious issue andhad an influence on Tennessee politics for some time to come. On the other hand, Hawkins had earned a repu-tation as a champion of judicial and educational reform. His administration was hailed as being both honest andefficient and he won bipartisan acclaim for his integrity in office. Many believe that head virtually erased thestigma which the Republicans had carried as a result of the autocratic administration of William Brownlow.

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The Tennessee Constitutional Convention met inearly 1796 in Knoxville. Among the delegateswere men who would later play large roles in

state and national affairs, such as John McNairy,William Blount and Andrew Jackson. Their final prod-uct had many similarities to the constitutions of NorthCarolina and Pennsylvania. The Constitution did notcontain a specific separation of powers provision, but itdid vest the executive power in the governor, the leg-islative power in the General Assembly and the judicialpower in “such superior and inferior courts of law andequity as the legislature from time to time direct andestablish.”1 Why did they not include a more expressprovision for the separation of powers? Maybe they didnot think one was needed in light of the express vestingof powers among the three branches of the govern-ment? Perhaps they were more concerned with estab-lishing the state government than with “details.” OneTennessee historian noted, “Robertson and many of hisassociates were not lawyers, and the American peoplehad yet to learn the great service that an independentjudiciary is capable of rendering.”2

Despite the ability of the General Assembly to cre-ate and repeal the courts, Tennessee’s highest court didnot view itself as an inferior branch. Rather, the oppo-site is true. As early as 1815 in an ejectment action inwhich the defendant challenged as unconstitutionalChapter 24 of the Acts of 1813, the justices saw the courtas “a separate and independent branch of govern-ment.”3 This notion arose, from the specific vesting ofjudicial authority in the courts. This vesting was part ofthe great framework of government.

The legislature, the executive and the judicialdepartments are three lines of equal length, balancedagainst each other, and the framework forming an equi-lateral triangle, becomes stronger the more its parts arepressed. Like the foundation of our religion, the trinity,it is the key on which the whole arch rests. The peoplehave erected it; they have seen its suitability for dura-tion, and compared its proportions with the externalview of the pyramid, whose age is untold, and whichalone, of all the works of man, has withstood the rav-ages of time.4

Related to this is the notion that independencecomes about from the concept of accountability. TheCourt’s independence was supported by the TennesseeConstitution’s specific vesting of the judicial powers inthe courts. With judicial responsibility should come

independence. In Officer v. Young,5 an act of the legisla-t u re authorized Young to prosecute a suit againstRobert Officer in the name of Peter Elrod without tak-ing out a letter of administration upon Elrod’s estate.Finding the act unconstitutional, the Judge Jacob Peckstated that “if the agent be not free to act, there shouldnot be accountability; hence arises the great necessity ofcourts looking to their own constitutional rights andpower and firmly disregarding all attempts at innova-tion upon them.”6

Even though the 1796 Tennessee Constitution per-mitted the General Assembly to create and abolish thecourts at will, the highest court of Tennessee asserted itsindependence. As Judge Peck observed many yearsago, “The framers of our constitution never dreamed ofadmitting the exercise of arbitrary power in any depart-ment of the government … it is our (the court’s)province to look into the constitution.”7

Notes1Tenn. Const., Art. V, Sec. I (1796)2Joshua W. Caldwell, Studies in the Constitutional Historyof Tennessee, 2nd ed. (Cincinnati: The Robert Clarke Co.,1907), 149.3Bristoe v. Evans & McCampbell, 2 Tenn. 341, 34 (1815)4Bank of the State v. Chas. Cooper and others, 10 Tenn. 599,611 (1831).513 Tenn. 320 (1833).6Id., at 3227Bank of the State v. Chas Cooper and others at 611.❖

Alvin Hawkins, continued Hawkins retired again from public life in January

1883. He returned to Huntingdon and his law practiceand continued to be very active in the MethodistChurch. He died April 27, 1905, at the age of 84, havingattained a niche in Tennessee history as one of thestate’s more colorful, (if not one of its more controver-sial) public figures.

Sources:• Harvey G. Hudspeth, “State Debt Controversy,”

Encyclopedia of Tennessee• Ben Brown, “A History of the Tennessee Supreme

Court”

Gil Campbell, CAE, serves as executive director of theSociety.❖

The Tennessee Supreme Court and the Separation of Powers Under the 1796 Tennessee Constitution

by Andy D. Bennett